Lexington Ry. Co. v. Herring

• Decision Date: 27 September 1906
• Citation: 96 S.W. 558
• Parties: LEXINGTON RY. CO. v. HERRING.
• Court: Kentucky Court of Appeals

96 S.W. 558

LEXINGTON RY. CO. v. HERRING.

Court of Appeals of Kentucky.

September 27, 1906

Appeal from Circuit Court, Fayette County.

"Not to be officially reported."

Action by Allee Herring against the Lexington Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Stoll &amp Bush, R. C. Stoll, Morton, Webb & Wilson, and Allen & Duncan for appellant.

C.J Bronston and Wallace Muir, for appellee.

CARROLL C.

The appellee, a young lady living in Lexington, brought this action against the appellant to recover damages for personal injuries sustained by her, and caused, as she alleged, by the sudden starting of a car that she was in the act of getting on. The injury sustained by appellee resulted in the loss of one foot, and there is no serious complaint about the amount of the verdict in her favor, which was for $7,000, if she was entitled to recover at all.

The appellant has a double-track line of road, running out of South Broadway, and it crosses Water, Vine, and High streets in the order named, and passes on, crossing other streets to the southern limits of the city. There is a gradual ascent beginning at Water street and continuing to a point about 179 feet beyond High street, and at this point, which may be called the top of the grade, appellant had posted at the time of the injury a sign "cars stop here." About 10 o'clock in the evening of October 10, 1903, the appellee and her mother and sister walked on High street to Broadway, and started south on Broadway toward her home. For the purpose of getting on the car that was coming up the grade and going south on Broadway, appellee walked out in the middle of the street, and continued to walk south on Broadway until she reached a point a short distance south of High street, but not opposite the sign. When she arrived at this point the car going south came up to where she was, and, as she testifies, stopped. She then placed her right foot on the running board of the car, near the middle, and, while in the act of raising her hands to seize the handle bar of the car in order to lift herself up to a seat on the car, it suddenly started, and she was thrown to the ground; the rear wheel of the car passing over her left foot. The main question, as manifested by the record, is whether or not the car stopped. Both sides directed all their evidence to this issue. Four witnesses, including appellee, testified that the car did stop. Eight witnesses for appellant, including the motorman, conductor, and inspector, of the company, testified that the car did not stop. The witnesses who testified on this point were all in such position that they could see whether or not the car stopped. Appellee's theory is that the car stopped for the purpose of permitting her to get on, and that, while in the act of getting on, it suddenly started. Appellant's theory is that the car did not stop, and that appellee was injured by her own negligence in attempting to board the car while it was in motion.

Counsel for appellant concede that there was sufficient evidence to take the case to the jury; but they earnestly insist that the verdict is flagrantly against the evidence, and that the trial court for this reason should have granted a new trial, and that this court should reverse the case and order a retrial. The evidence for appellant and appellee upon the controlling question is directly and sharply in conflict. Four witnesses testified to one state of fact, and eight witnesses to another; and it is insisted that, aside from the number of witnesses who testified, the car did not stop; that their opportunity of knowing whether it stopped or not was so much greater than that of the witnesses for appellee that the verdict cannot be sustained; and that the jury, influenced by their sympathy for the misfortune of the appellee, disregarded the testimony. The purpose of jury trials in controverted questions of fact is to get the judgment of 12 impartial men selected for the purpose by both parties to the litigation. These triors of facts see the witnesses, observe their manner of testifying, notice their demeanor on the witness stand. In their presence witnesses are subject to a rigid examination, every competent detail within their knowledge is produced, they have a perfect right in the exercise of the power vested in them to disregard all or any part of the testimony of any witness, to accept as true all that other witnesses state. They have the right to weigh and consider the evidence, and to arrive in their own way at a conclusion concerning it. It is entirely proper that the courts and judges should be reluctant to disturb the findings of a jury upon a question of fact. Juries are clearly as competent and well qualified in ordinary cases to determine correctly simple questions of fact as are judges, and the average judgment of 12 good men--or 9, if less than the whole jury make the verdict--is not a thing to be lightly set aside. In giving deference to the conclusion arrived at by a jury, the judge does not surrender any of his power, or lessen in any degree the importance of his office. He simply yields his opinion to that of the men whom the parties have selected to ascertain the truth as it falls from the lips of the witnesses. If the judge was so authorized, and undertook to set aside the verdict of a jury in every case where it did not comport with his conclusion, trial by jury would be a mockery, and the opinion of the court would be substituted for that of a tribunal established by law for the purpose of arriving at the facts. There are, of course, cases in which juries are so carried away by either sympathy or passion or prejudice, that they lose sight of the testimony, and the weight it is entitled to, and base their conclusion upon their personal conviction of the right or wrong of the case. When this condition of affairs presents itself, the courts do not hesitate to interfere; but the mere fact that a great number of witnesses are introduced to prove a certain state of facts, and a lesser number to disprove it, is not sufficient to authorize a court to disturb the conclusion reached by the jury. The rule that a verdict of a properly instructed jury will not be interfered with, unless it is palpably and flagrantly against the evidence, is as firmly fixed in the jurisprudence of this state as any principle of law resting on judicial deliverance can be, and has been announced in repeated decisions of this court, beginning with its earliest history. Outen v. Merrill, 2 Litt. 305; Hughes v. McGee, 1 A. K. Marsh. 29; L. & N. R. Co. v. Graves' Assignee, 78 Ky. 74; Standard Oil Co. v. Eiler, 61 S.W. 8, 22 Ky. Law Rep. 1643; Thomson v. Thomson, 93 Ky. 437, 20 S.W. 373; Young v. Young, 39 S.W. 23, 19 Ky. Law Rep. 54. In obedience to this uniform ruling by this court, the trial judge properly declined to set the verdict of the jury aside.

Appellant offered to prove by a number of witnesses, including appellee, that they had frequently seen appellee getting on and off street cars while in motion. The court rejected this evidence, and of this ruling the appellant complains. Whether it is competent or not in the trial of negligence cases to prove the personal habits of a party, the authorities are conflicting. Our attention has been called to several cases decided by courts of other states, holding such evidence competent. Wigmore, in his work on Evidence (section 199), says that: "In a few jurisdictions the character of a defendant or of an employé or of a plaintiff for negligence or prudence may...